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THE COURT OF APPEALS OF THE STATE OF ALASKA
CARLOS A. DeJESUS, )
) Court of Appeals No. A-3201
Appellant, ) Trial Court No. 4FA-S88-2437CR
)
v. ) O P I N I O N
)
STATE OF ALASKA, )
) [No. 1415 - June 23, 1995]
Appellee. )
______________________________)
Appeal from the Superior Court, Fourth
Judicial District, Fairbanks, Niesje J.
Steinkruger, Judge.
Appearances: James M. Hackett,
Fairbanks, for Appellant. Cynthia L. Herren,
Assistant Attorney General, Office of Special
Prosecutions and Appeals, Anchorage, and
Bruce M. Botelho, Attorney General, Juneau,
for Appellee.
Before: Bryner, Chief Judge, Coats,
Judge, and Andrews, Superior Court Judge.*
[Mannheimer, Judge, not participating.]
BRYNER, Chief Judge.
Carlos A. DeJesus pled no contest in 1988 to charges of
first-degree escape and attempted first-degree murder. Prior to
sentencing, DeJesus moved to withdraw his no contest pleas.
Superior Court Judge Niesje J. Steinkruger denied the motion.
Judge Steinkruger sentenced DeJesus to a composite term of eighty
years with twelve years suspended. Judge Steinkruger
subsequently dismissed an application for post-conviction relief
in which DeJesus claimed that his original attorney had provided
him ineffective assistance in connection with the entry of his no
contest pleas and his later motion to withdraw that plea.
DeJesus appeals, claiming that the superior court erred in
issuing these rulings. DeJesus also asserts that his sentence is
excessive. We remand for further proceedings.
FACTUAL AND PROCEDURAL BACKGROUND
To lend focus to the issues we are called upon to
consider, we must describe in some detail the factual and
procedural events that culminated in this appeal. On September
1, 1988, Fairbanks Police Officer Peggy Sullivan attempted to
arrest DeJesus for carrying a concealed weapon (a knife).
DeJesus resisted and began struggling with the officer. In the
course of the struggle, DeJesus' female companion, Carese
Sumpter, handed DeJesus a handgun. DeJesus allegedly pointed the
gun at Sullivan's head, demanded the officer's gun, and
threatened to kill her. Sullivan pulled her gun from its
holster; a shootout ensued. DeJesus allegedly fired first,
shooting seven rounds, one of which struck Sullivan in the arm.
Sullivan fired four rounds in return; the four shots struck
DeJesus in the abdomen, pelvis and thigh. DeJesus fled the scene
with Sumpter as Sullivan ran for cover. Other officers soon
arrested DeJesus near the shooting scene.
As a result of the shooting incident, the state charged
DeJesus with attempted first-degree murder, first-degree escape,
second-degree assault, and fourth-degree misconduct involving a
controlled substance.1 On December 5, 1988, DeJesus appeared
before Judge Steinkruger and entered pleas of no contest to the
attempted murder and escape charges. Pursuant to the terms of a
plea bargain, the state agreed to dismiss DeJesus' remaining
charges. Judge Steinkruger scheduled sentencing for March of
1989.
On January 13, 1989, about five weeks after his change
of plea hearing, DeJesus, through counsel, moved to withdraw his
no contest pleas, asserting that "the testimony of a witness will
show that he [DeJesus] did not intend to kill the police officer
and thus should not have pled no contest to Attempted Murder in
the First Degree." Judge Steinkruger conducted a hearing on
DeJesus' motion on March 20, 1989. At the hearing, DeJesus'
counsel called Richard Hudson as a witness. Hudson, an
acquaintance of DeJesus, testified that he had witnessed the
shooting incident, that Sullivan had fired first at DeJesus, that
DeJesus had not pointed his gun at Sullivan before Sullivan shot
him, and that DeJesus had fired his gun only after being shot.
Hudson also testified that he had not be able to tell
DeJesus about his observations until two or three weeks after
Hudson had himself been arrested and incarcerated (for unrelated
matters) at the Fairbanks Correctional Center on December 6, 1988
-- the day after DeJesus' change of plea hearing. According to
Hudson, two or three weeks after his own arrest, he encountered
DeJesus in the correctional center's gymnasium; Hudson described
what he had seen at the time of the shooting and asked DeJesus
why he had pled guilty to attempted murder when it was the
officer who had shot first. Hudson testified that DeJesus
responded that he had no memory of the shooting because he had
been drinking most of the preceding day and "was on blackout."
Although Hudson testified that he had no opportunity to
speak personally with DeJesus about the shooting until their
December jailhouse encounter, Hudson insisted that, some time
before his December 6 arrest, he had telephoned DeJesus' attorney
and had told the attorney what he had observed at the shooting
scene. Hudson testified that he believed that DeJesus' attorney
had recorded this telephone conversation.
After presenting Hudson's testimony, DeJesus' counsel
argued that the eyewitness evidence amounted to a fair and just
reason for allowing withdrawal of DeJesus' no contest pleas.
Defense counsel emphasized that DeJesus had acted promptly in
response to the new information; counsel disclosed that, after
DeJesus' jailhouse conversation with Hudson, DeJesus had
contacted his attorney without delay and, based on Hudson's
statements, had asked that a motion be filed to allow him to
reinstate his not guilty pleas. DeJesus' counsel arranged for an
investigator to interview Hudson on January 9, 1989, and four
days later filed DeJesus' motion to withdraw the no contest
pleas.
In response to defense counsel's characterization of
Hudson's testimony as newly discovered evidence, Judge
Steinkruger asked counsel about Hudson's testimony indicating
that Hudson had discussed his version of events with counsel by
telephone some time before Hudson's December 6, 1988, arrest.
The court reasoned that if this discussion had in fact occurred,
counsel would have had the information prior to DeJesus' change
of plea hearing, which was held on December 5, only one day
before Hudson's arrest. At the change of plea hearing, DeJesus
had assured the court that he had had the opportunity to discuss
the evidence with his attorney. Noting DeJesus' earlier
assurances, Judge Steinkruger asked defense counsel to "[e]xplain
to me the discrepancy."
DeJesus' counsel explained that he had spoken to Hudson
earlier that morning, just before the hearing, and had asked if
Hudson had previously discussed the matter with anyone else.
According to defense counsel, Hudson
told me that he had discussed it with
me. I was a bit taken aback, because I
didn't recall having discussed these facts
with Mr. Hudson or with anyone else prior to
January 9 of this year, when my investigator
went out to interview him. In talking
further with Mr. Hudson, and certainly
listening to him here on the stand, I do
recall that he did, in fact, call my office.
I don't recall what date that was. And we
did talk about his knowledge of what he had
seen on the early morning of September 1st[.]
DeJesus' counsel went on to explain, however, that he did not
recall ever telling DeJesus about Hudson's original
communication: "I'll just leave it at that. . . . I can safely
say that if I didn't recall it this morning, I don't recall ever
having discussed that specifically with Mr. DeJesus until after a
copy of the interview with Mr. Hudson was provided to him on or
about January 10, 11, and 12 [of] this year."
After listening to this explanation, the prosecutor
informed Judge Steinkruger that the state now thought it
necessary to call defense counsel as a witness to determine the
precise nature and timing of counsel's earlier communications
with Hudson. The prosecutor indicated that defense counsel's
apparent failure to mention Hudson's original statement to
DeJesus "[l]eads the state to believe that Mr. Hudson did not say
anything like what he said today[.]" The prosecution thus asked
to call defense counsel as a witness to "clear this matter up[.]"
In making this request, the prosecutor pointed out that, "if
that's going to happen, then, of course, probably Mr. DeJesus
needs another lawyer."
Judge Steinkruger found that DeJesus' attorney had
indeed become a witness and that a conflict of interest had
therefore arisen between DeJesus and his attorney. On this
basis, the judge scheduled further proceedings for another date
and ordered new counsel appointed for DeJesus.
Shortly after adjourning the hearing, however, Judge
Steinkruger summoned the parties back to the courtroom. Upon
reconvening, DeJesus' attorney revealed that he had just talked
to an associate, who recalled that Hudson's original conversation
with DeJesus' attorney may have been recorded. Judge Steinkruger
then continued the hearing until the afternoon, directing
DeJesus' attorney to search for the tape and produce it at the
afternoon hearing. That afternoon, DeJesus' attorney evidently
produced and played for the court the tape recording of his
conversation with Hudson. The recording had been made on
November 25, 1988 -- ten days before DeJesus entered no contest
pleas. Hudson's taped description of the shooting incident
apparently coincided with the description he gave during his
testimony at the March 20, 1989, hearing.2
Upon hearing the tape-recorded conversation, Judge
Steinkruger asked DeJesus' attorney if listening to the tape had
refreshed his memory about whether he had discussed Hudson's
November 25 statement with DeJesus before the December 5 change
of plea hearing. Counsel said that he still had no independent
recollection of discussing the topic with DeJesus. Judge
Steinkruger then continued the hearing to March 24, 1989,
requesting defense counsel to review jailhouse visiting records
and his own files for any information that might refresh
counsel's recollection or shed light on whether Hudson's
statement was disclosed to DeJesus prior to the change of plea
hearing.
At the March 24 hearing, DeJesus' counsel informed the
court that his review of available files and records established
that he had visited DeJesus on three occasions between November
25 and December 5, 1988. But counsel had found nothing to
refresh his memory as to whether he had mentioned Hudson's
statement during any of these visits: "I cannot say definitively
that I did or did not discuss the matter with Mr. DeJesus."
The prosecution thereupon asked to call DeJesus as a
witness on the issue. DeJesus' counsel voiced no objection. On
direct examination by the prosecution DeJesus initially insisted
that when he changed his plea his attorney had not talked to him
about what Hudson might testify to: "I wasn't know about nothing
at all. There was another witness. . . . I wasn't know about
that."3 However, DeJesus went on to reveal that, shortly before
the December 5 change of plea hearing, he had asked his attorney
to talk to Hudson but had received a negative response.
According to DeJesus:
I'm the -- I'm the one who told him
[DeJesus' counsel] about it, because I called
-- I called one time, my old lady, to see how
my kid was, and she say she received a phone
call from Rick, and she talked to him. You
know, in the street. And he -- he told her
that that night I got shot that he was with
Michelle [Hudson's girlfriend], and they saw
us -- they saw us, and they saw when the cop
shoot at me. And they thought I was -- I was
dead.
According to DeJesus, when he told this information to his
attorney, his attorney replied "that that was no important point.
It was going to do no good to me in here. . . . He said that was
good for my sentencing." DeJesus further claimed that his
attorney said "[h]e was making, already, a deal with you [the
prosecutor]. And then, also, he say to me that the -- that was
only five to twenty. Five to twenty years. He make a deal with
you I be probably be -- my sentence can be up to thirteen years,
and I can be out of prison by parole seven or eight years."
The prosecutor asked DeJesus no further questions.
Judge Steinkruger then sought to clarify whether DeJesus had
"already talked to [his attorney] about Mr. Hudson" when he
changed his plea; DeJesus reiterated that "[w]e told him about
it, and he say to me that . . . it was going to do nothing
good[.]" The court inquired, more specifically, whether DeJesus
had "discussed any evidence that Rick Hudson might have[.]"
DeJesus emphatically declared that he had "never talked to . . .
Rick Hudson." When pressed again by the court as to whether he
had talked with his attorney about Rick Hudson, however, the
following exchange occurred:
A I tell -- I told him that my old lady
told me that Rick Hudson -- he saw
everything.
Q Right.
A I have no (indiscernible) the car for
the shooting. I . . .
Q And you had told [your attorney] that
before you came to court.
A I explained -- I told [my attorney]
about it. It means I get the phone, I tell
it I was going to try to get a phone with my
old lady to see he can get ahold of Rick
Hudson. You know. Then he come back to see
me, and he say, 'ey -- yeah, he gives me the
whole -- all the invo (ph) that was
(indiscernible) cases because when I say to
him was it in court, and they already got a
deal.
Q Okay.
A You know.
Q And that was before you came . . .
A Yeah.
Q . . . to court on the deal.
A Yeah. They -- when I found out, you
know, that it's real important, too, you
know, because the jury care to know, about
it, too, you know, that's when I went to the
law library over there and started reading a
book on what the people over there say
(indiscernible) super hard to put a -- that's
supposed to be hard to use, and the . . .
Q Uh-huh.
A Because that's the part you play. [Trans-
criber's emphasis]
The core dispute presented in this appeal was
engendered by this exchange. DeJesus' trial counsel interpreted
his client's statements to Judge Steinkruger as an acknowledgment
by DeJesus that DeJesus had discussed the substance of Hudson's
November 25 statement with counsel prior to the December 5 change
of plea hearing. Counsel thought that DeJesus had in effect
admitted having prior knowledge of the information that counsel
had recently presented to the court as newly discovered --
Hudson's exculpatory version of events. Counsel thus concluded
that he had been manipulated by his client to file a plea-
withdrawal motion based on a false claim of newly discovered
evidence.
When Judge Steinkruger finished her examination of
DeJesus, DeJesus' counsel declined to ask any questions of his
client, and DeJesus was excused as a witness. Judge Steinkruger
called upon defense counsel for further argument on the
withdrawal motion, but counsel declined to make further argument,
stating: "I find myself in an awkward position, given the
statement that I've given to the court, and documentation that I
have. And the statements of Mr. DeJesus." Judge Steinkruger,
indicating that she could simply take the plea-withdrawal motion
under advisement and decide it without further argument,
suggested that she would have "no problem . . . if you'd just
like to stand on your briefing, at this stage." DeJesus' counsel
replied, "That'll be fine." The judge scheduled a hearing for
March 29 to announce her decision on the withdrawal motion.
DeJesus' counsel informed the court that he would file a motion
to withdraw as counsel prior to that date.
On March 29, Judge Steinkruger announced her decision
denying DeJesus' motion to withdraw his no contest pleas.
DeJesus' counsel, in the interim, had formally moved to withdraw
from the case. In his motion, counsel alleged that he could "no
longer zealously represent the interests of this defendant."
Counsel asserted, among other things, that his client had led him
down "the primrose path" by making him believe that counsel had
"relevant information . . . that had not been shared with the
defendant." Counsel further asserted that, during the March 24
hearing, "defendant testified, contrary to counsel's belief and
expectations based on the previous hearings, that when he changed
his plea on December 5, 1988, [c]ounsel had already discussed
Hudson's statement." (Emphasis in original.) Given this
testimony, counsel claimed that "[t]his is a case where the
integrity of counsel was either recklessly or intentionally
placed at issue in what appeared to be an attempt to fraudulently
induce the court to consider a course of action, and to take a
requested course of action. Counsel is grossly offended and
cannot ethically and in good conscience continue to represent
this defendant."
The position advocated by defense counsel in his motion
to be relieved from the case is essentially the same position the
superior court relied on in denying DeJesus' motion to withdraw
his no contest pleas. In her March 29 decision on the plea-
withdrawal motion, Judge Steinkruger found: "It's clear from Mr.
DeJesus' testimony under oath that he was aware of Mr. Hud -- the
evidence which Mr. Hudson had to offer and that he had discussed
it with counsel prior to his change of plea. It's clear that
this is one of the factors taken into account in relationship to
the change of plea." On this basis, Judge Steinkruger found that
"the motion to withdraw the plea is an attempt to manipulate the
system by the defendant and delay the proceedings. In fact, it
appears that the defendant has manipulated defense counsel to
file a motion when it was clear by the defendant's own testimony
that he was aware of the evidence which Mr. Hudson may have
had[.]"
Judge Steinkruger went on to find that DeJesus had
simply "changed his mind. He apparently has re-evaluated the
evidence which is the same evidence he had prior to his entry of
plea[.]" The judge concluded that this did not amount to a fair
and just reason to allow DeJesus to withdraw his no contest
pleas. Accordingly, even though Judge Steinkruger found that
there had been no significant delay in filing the motion to
withdraw and that "there's very little prejudice to the state if
the plea is withdrawn[,]" the judge denied DeJesus' motion.
Upon denying DeJesus' motion, Judge Steinkruger allowed
DeJesus' original attorney to withdraw from the case and ordered
the appointment of a new attorney to handle DeJesus' case.
Sentencing was eventually set for July 26.
On May 19, 1989, prior to the sentencing hearing and
evidently before a new attorney had actually entered an
appearance on DeJesus' behalf, DeJesus filed a pro se application
for post-conviction relief alleging that his original attorney
had been incompetent in handling DeJesus' change-of-plea hearing
and the subsequent motion to withdraw his no contest pleas. With
regard to the change-of-plea hearing, DeJesus alleged that his
original attorney had failed to explain the sentence that DeJesus
might receive and had misled DeJesus to believe that he could not
receive "a very large sentence." With regard to the plea-
withdrawal motion, DeJesus complained that his attorney's
allegation that DeJesus had attempted to perpetrate a fraud on
the court "had the effect of counter acting any motion he filed
for me to reverse the plea. This affidavit of [trial counsel]
makes accusations which were unsubstantiated and had the effect
of prejudicing the court's decision making processes[.]"
DeJesus' post-conviction relief application did not
receive attention immediately, and his case proceeded to
sentencing, where DeJesus was represented by a new attorney.
After hearing extensive testimony concerning the circumstances
surrounding the shooting incident, Judge Steinkruger found the
attempted murder and escape offenses to be extremely aggravated
and DeJesus' prospects for rehabilitation to be poor. The judge
sentenced DeJesus to a term of sixty-five years with ten years
suspended for attempted murder and to a consecutive term of
fifteen years with two years suspended for escape. DeJesus
appealed.4
Not long after the sentencing hearing, DeJesus filed,
through his new counsel, an amended application for post-
conviction relief, which amplified the allegation of ineffective
assistance of counsel contained in the earlier pro se application
by adding a new claim: that DeJesus' original counsel had been
ineffective in failing to investigate and assert a defense to
attempted murder based on diminished capacity. Thus, DeJesus'
amended application advanced three distinct theories of
ineffective assistance: incomplete and misleading advice as to
the potential sentence; conflict of interest in the presentation
of the plea-withdrawal motion; and failure to pursue a defense
based on diminished capacity.
The state moved to dismiss the amended application,
arguing that DeJesus had failed to make a prima facie showing of
ineffective assistance of counsel. In particular, the state
pointed out that DeJesus had failed to overcome the presumption
of competence by neglecting to submit an affidavit from his
original counsel. DeJesus then arranged a deposition of his
original attorney; the deposition was held on October 11, 1989.
DeJesus did not inquire about the circumstances surrounding his
counsel's handling of the plea-withdrawal motion. His original
counsel's deposition testimony addressed only the other two
facets of DeJesus' ineffective assistance of counsel claim.
On the issue of diminished capacity, counsel stated
that he had considered the defense and decided that there was not
enough evidence to justify raising it. In contrast, with respect
to his pre-plea sentencing advice to DeJesus, counsel
acknowledged that, although he had made no guarantees, he had
told DeJesus that DeJesus could expect to receive a total
sentence of between ten and thirteen years' incarceration.
Counsel also candidly admitted that, at the outset of the
sentencing hearing, he had been under the impression that
attempted murder was a class A felony (punishable by a maximum of
twenty years) rather than an unclassified felony (punishable by a
minimum of five years and a maximum of ninety-nine):
Q Okay. And did you discuss with Mr.
DeJesus prior to the time that he changed his
plea this range of sentences that was
possible for each of the offenses listed?
A With the possible exception of the range
of sentences for attempted murder. I recall
at one hearing in court where it was my
understanding, and what I'd communicated to
Mr. DeJesus was that the range was five to I
believe twenty at that time. And I think
you, [the prosecutor], and perhaps the court
as well at that time informed me that there
had been a recent change and that it was now
five to ninety-nine years. I believe, also,
at that time, you know, we took a minute or
so of whatever time in court and went over
that with Mr. DeJesus and then the court
continued with whatever the proceeding was.
On further cross-examination by the prosecution,
counsel conceded the possibility that he had been informed, prior
to the change of plea hearing, that the maximum sentence for
attempted murder was ninety-nine years, and not twenty years.
But counsel insisted that he had no memory of discussing the
maximum sentence with the prosecutor. Counsel suggested, "I
think what would clear that up would be listening to whatever
hearing that was because I distinctly recall that I was surprised
or did not know that the range had been up to ninety-nine years."5
On January 8, 1990, after reviewing all pertinent
pleadings, including the deposition transcript, Judge Steinkruger
summarily dismissed DeJesus' amended application. DeJesus'
appeal of this dismissal order has now been consolidated with his
direct appeal.
PLEA WITHDRAWAL
DeJesus argues that the superior court erred in denying
his motion to withdraw his no contest pleas. He claims that he
met his burden of establishing a fair and just reason for
withdrawal. Alternatively, DeJesus maintains that the court
erred in ruling on the plea-withdrawal motion after it became
clear that a conflict of interest had developed between himself
and his attorney in connection with DeJesus' pre-plea awareness
of the information addressed in Hudson's March 20, 1989,
testimony. We need address only the latter issue, for we find it
dispositive.
We have previously held that when an attorney's
"ethical and moral dilemma [is] squarely at odds with his duty"
to protect his client, the attorney should withdraw as counsel.
Smith v. State, 717 P.2d 402, 406 (Alaska App. 1986). Here,
trial counsel's situation arguably became at least marginally
conflicted at the conclusion of the initial hearing on DeJesus'
plea-withdrawal motion, when the prosecution sought to call
counsel as a witness to determine the nature and timing of
counsel's prior communications with Hudson.6 Indeed, Judge
Steinkruger recognized the problem and ordered a new attorney
appointed for DeJesus.
The judge held this order in abeyance, however,
because, shortly after the initial March 20 hearing adjourned,
the parties returned to court, and DeJesus' counsel announced
that his initial conversation with Hudson may have been recorded.
The court ordered counsel to locate the tape, which was found,
produced, and played in open court at a third hearing later the
same day. Because the tape did not refresh counsel's
recollection as to whether and what he had communicated with his
client, the court rescheduled proceedings for March 24 and
ordered counsel to conduct a search for further information to
shed light on the issue.
Although counsel was never actually called as a
witness, the potentially conflicting demands facing him in this
situation certainly did not abate during these events, for
counsel was in effect assigned by the court to engage in a hunt
for records and information that might enhance his ability to
testify, or serve in lieu of testimony; and it seems apparent --
at least in retrospect -- that production of this information
might have been contrary to the interests of counsel's client.
If the state's announced intention of calling counsel as a
witness justified the court's immediate order requiring a new
attorney to be appointed to represent DeJesus, then it seems
questionable whether the ensuing events of the day justified the
court's decision to hold the order in abeyance.
For present purposes, however, we need not decide
whether these circumstances gave rise to a conflict requiring
counsel's immediate withdrawal; we assume that they did not. In
light of these circumstances, however, it seems clear that the
situation with respect to conflict was already marginal when the
court convened the March 24, 1989, hearing. At that time,
counsel promptly reported that he had met three times with
DeJesus between November 25 (the date of Hudson's taped
statement) and December 5, the date of the change of plea, but
still had no recollection of discussing Hudson's statement with
DeJesus. The state called DeJesus as a witness to clarify the
situation. We continue to assume that the situation remained
conflict-free at this point. By the conclusion of DeJesus'
testimony, however, any latent ambiguity had clearly dissipated:
a clear conflict of interest had arisen.
By the time DeJesus had finished testifying, DeJesus'
counsel plainly and unambiguously viewed his situation as
conflicting with that of his client, who, in counsel's view, had
just led him down "the primrose path."7 Although counsel made
known to the court that he viewed the situation as "awkward," he
did not immediately seek to withdraw, but merely announced his
future intention to do so. Despite the obvious conflict, and
while still acting nominally as DeJesus' attorney, counsel made
known to the court his own distinctly unfavorable interpretation
of DeJesus' testimony, declined to question DeJesus, and agreed,
at the court's suggestion, to submit the withdrawal motion for
decision with neither further evidence nor argument. And despite
the obvious conflict, the court accepted counsel's decision to
submit the matter. While allowing counsel to continue serving
nominally as DeJesus' attorney, the court proceeded to decide the
motion against DeJesus, adopting defense counsel's view that
DeJesus had manipulated both the court and his own attorney.
We think it self-evident that DeJesus had the right to
be zealously represented by counsel throughout the course of
these proceedings. Conversely, DeJesus' counsel should have
ceased all representation and withdrawn as soon as it became
clear that DeJesus' interests were in conflict with counsel's
own. Counsel did not do this. Rather, by waiving the right to
cross-examine DeJesus and agreeing to submit the plea-withdrawal
motion for decision without further evidence or argument, counsel
affirmatively relinquished procedural rights that belonged to his
client -- rights that might have been crucially significant to
DeJesus at the precise point of their surrender. By waiving
cross-examination of DeJesus and submitting his motion for
decision without further proceedings, counsel in effect
surrendered on the merits of the motion itself with no effort
whatsoever to clarify or rehabilitate DeJesus' testimony.
The point is hardly academic. For while defense
counsel and the court were both satisfied to proceed on the basis
of their initial interpretation of DeJesus' testimony, DeJesus
plainly was not. And a careful examination of the transcript of
DeJesus' testimony leaves ample room to question whether the
interpretation adopted by counsel and the court is in fact
accurate. While it is possible to read DeJesus' testimony as
acknowledging that he had discussed Hudson's potential testimony
with his attorney before changing his plea, DeJesus' heavily
accented and rather inarticulate answers leave the precise
meaning of his testimony in doubt. At no point does DeJesus
appear to expressly acknowledge being aware of or discussing with
his attorney prior to his change of plea hearing the substance of
the information addressed by Hudson in his tape-recorded
interview of November 25, 1988, and his testimony of March 20,
1989.
In fact, when read in its entirety, DeJesus' testimony
arguably lends itself to an interpretation that would be entirely
consistent with the conclusion he had no knowledge of the
substance of Hudson's proposed testimony when he changed his
pleas: DeJesus can be read as saying that he had been informed by
his girlfriend that Hudson had witnessed the shooting; that he
relayed this information to counsel and attempted to convince
counsel to follow up; but that he was told that a deal was
already in the works and that Hudson's testimony could be of no
use except for sentencing purposes. The transcript does not rule
out this interpretation, nor does it unequivocally establish
that, before changing his plea, DeJesus was aware of and
discussed with counsel the substance of Hudson's proposed
testimony.
We do not profess to know what DeJesus actually meant
by his testimony, and we express no view as to his likely
meaning. We observe only that, at a minimum, the issue remains
clouded in sufficient ambiguity to deserve clarification.
DeJesus was entitled to have the uncertainty clarified in the
adversarial context of the March 24 hearing. Yet the events of
the day left him without an advocate capable of zealously
representing his interest in ensuring that an effort at
clarification was made. Instead, his case was surrendered
without further struggle by an attorney whose interests, at that
time, were plainly at odds with those of his client.
Under the circumstances, we conclude that the superior
court erred in ruling on the merits of DeJesus' motion without
first appointing replacement counsel and allowing counsel the
opportunity for further argument and inquiry. Given the error,
we find it necessary to vacate the order denying the plea-
withdrawal motion and to remand the case for further proceedings.8
POST-CONVICTION RELIEF
DeJesus separately appeals the superior court's order
dismissing his application for post-conviction relief. Alaska
Criminal Rule 35.1 governs post-conviction relief applications.
This rule establishes "a three-phase process, the first phase
involving the filing of the application and the assessment of its
sufficiency to set out a prima facie case for relief, the second
phase involving discovery and review for genuine issues of
disputed fact, and the third involving the evidentiary hearing
and formal resolution of disputed facts." Parker v. State, 779
P.2d 1245, 1246 (Alaska App. 1989)(footnote omitted). Here, the
superior court disposed of DeJesus' application in the first
phase of the process, ordering the application dismissed for
failure to set out a prima facie case for relief. In reviewing
the superior court's decision, we must thus determine whether the
application sets out facts which, if true, would entitle DeJesus
to the relief claimed. See Alaska R. Crim. P. 35.1(f)(2); State
v. Jones, 759 P.2d 558, 565 (Alaska App. 1988).
As we have already indicated, the claim of ineffective
assistance of counsel advanced in DeJesus' application rests on
three distinct theories. One of these theories -- that DeJesus
original attorney was ineffective in his handling of the plea-
withdrawal by virtue of a conflict of interest -- is moot in
light of our decision vacating the superior court's order denying
the plea-withdrawal motion; the remaining two theories are not
moot.9 One of the two remaining theories -- that DeJesus'
original counsel was ineffective in failing to explore the
possibility of a diminished capacity defense -- requires little
discussion. In his deposition, DeJesus' original counsel
expressly testified that he had considered and rejected a
diminished capacity defense. DeJesus has alleged no facts
indicating that his counsel's decision was unsound or
incompetent. With respect to this theory, he has therefore
failed to overcome the presumption that his attorney acted
competently. See Parker, 779 P.2d at 1247; Jones, 759 P.2d at
569. The superior court did not err in dismissing the
application as to this theory.
The court's rejection of DeJesus' last theory -- that
his attorney provided him with incorrect sentencing information -
- is more problematic. The deposition of DeJesus' counsel
provides strong support for the conclusion that at the outset of
the case, counsel mistakenly believed attempted first-degree
murder to be a class A felony, subject to a maximum term of
twenty years. The deposition, when read in the light most
favorable to DeJesus, further supports DeJesus' claim that
counsel remained under this misimpression when he advised DeJesus
to change his pleas to no contest. Finally, the deposition
indicates that counsel persisted in this mistaken belief until
the change-of-plea hearing itself, at which time he was informed
that attempted first-degree murder had recently been reclassified
from a class A felony to an unclassified felony and, as such, was
subject to a maximum term of ninety-nine years' imprisonment.
Admittedly, counsel's deposition testimony on this
issue was not entirely unequivocal, leaving room to speculate
that his mistaken understanding of the maximum term might have
been corrected at some hearing other than -- and prior to -- the
change-of-plea hearing. But at the first phase of the post-
conviction relief process, resolution of factual disputes is not
involved; the sufficiency of the pleadings must be assessed by
viewing the application and all factual information incorporated
therein in the light most favorable to the applicant. Viewed in
the light most favorable to DeJesus' claim, his counsel's
deposition testimony supports DeJesus' allegation that his
attorney led him to believe that, if he changed his pleas to no
contest, his maximum exposure on the attempted murder charge
could not exceed the twenty-year maximum for a class A felony.
Moreover, the record of the original sentencing hearing
confirms counsel's deposition testimony. The record establishes
beyond question that counsel arrived at the sentencing hearing
under the mistaken impression that attempted first-degree murder
was punishable by no more than twenty years' imprisonment. When
Judge Steinkruger apprised DeJesus of the maximum terms for his
offenses (twenty years for first-degree escape and ninety-nine
years for attempted first-degree murder, for a total of one-
hundred-nineteen years), and asked him if he understood, the
following occurred:
DeJesus: (Inaudible reply).
The Court: Mr. [Defense counsel]?
[Defense counsel]: Sure. As to the
escape, we are -- he understands the maximum
there. Last week, [the prosecutor] and I
chatted about the maximum for the attempted
murder, and he informed me it was ninety-
nine, and that's what I relayed to Mr.
DeJesus. But yesterday, when I checked the
statute before talking to Mr. DeJesus again,
I couldn't find where it said ninety-nine. I
believe it to be twenty.
[Prosecutor]: The . . .
[Defense counsel]: But, could be wrong.
[Prosecutor]: The bill that increased
the penalty for attempted murder in the first
degree to ninety-nine years just became
effective, I believe, the 26th of August of
this year -- 1988. And -- so, the
legislature raised it effective the 26th of
August. That's why it's . . .
[Defense counsel]: If that be the case,
then that be the case.
The Court: All right. Mr. DeJesus, do
you understand the maximum which is set
forth?
DeJesus: Yes, Your Honor.
[Emphasis added.]
This exchange lends credence to the deposition
testimony of DeJesus' original attorney and supports DeJesus'
claim of misadvice as to the sentencing framework within which
his case would be decided.10
The constitutional standard for effective assistance of
counsel is one of minimal competence. To be competent, an
attorney's conduct must merely fall "within the range of
reasonable actions which might have been taken by an attorney
skilled in the criminal law[.]" Risher v. State, 523 P.2d 421,
424 (Alaska 1974). While the range of competence among
practitioners may be broad, we think it virtually inconceivable
that an attorney skilled in the criminal law could reasonably
allow a client to enter a guilty or no contest plea to a criminal
charge, particularly an unclassified felony, without first
accurately explaining the maximum penalty that the client might
face and the range of penalties that appeared realistically
possible. Yet DeJesus' application for post-conviction relief
specifically alleges, and the record in the present case strongly
suggests, that DeJesus' original counsel may have done just that.
In the face of such a showing, it is insufficient to
argue, as does the state, that the superior court informed
DeJesus of the maximum penalty and that DeJesus indicated that he
understood it before the court accepted his plea. DeJesus'
complaint is not that the court failed to advise him of the
maximum sentence but that his counsel failed. The distinction is
significant. By failing to make clear to a client the maximum
term the client faces upon the entry of a guilty or no contest
plea, an attorney deprives the client of any opportunity to
obtain counsel's advice concerning the advisability of entering
such a plea in light of the potential penalty that might result
therefrom.
Here, for example, the record indicates that DeJesus'
counsel may have advised DeJesus as to the likely range of
penalties he faced based on counsel's assumption that attempted
murder was a class A felony. When counsel learned for the first
time that at the change-of-plea hearing that attempted first-
degree murder was an unclassified felony with a maximum penalty
seventy- nine years longer than he had believed it to be,
counsel's duty, in our view, was to ensure that DeJesus
understood, not just the bare fact of what the maximum was (the
fact independently communicated by the court), but also the
potential consequences of that fact in the real-life setting of
DeJesus' case.
There can be little doubt here that the court
adequately made known to DeJesus the fact that he faced a maximum
penalty of ninety-nine years for attempted murder. However, if,
as the record indicates, DeJesus' attorney allowed his client to
enter the originally contemplated no contest pleas with no
opportunity for consultation as to the significance of the
increased term, then there is equally little doubt that counsel
deprived his client of effective representation -- indeed of any
representation at all -- in connection with this new information.
DeJesus was in effect left to his own counsel in evaluating
whether and to what extent the newly disclosed maximum penalty
might be important to his case.
For this reason, we conclude that the facts before the
superior court at the time it dismissed DeJesus' application for
post-conviction relief set forth a prima facie case that DeJesus'
original counsel rendered ineffective assistance in advising
DeJesus as to the potential sentence he might receive. We
further conclude that the facts set forth in the record, if true,
would suffice to create a reasonable doubt as to whether the
ineffective assistance rendered by DeJesus' counsel contributed
to DeJesus' ultimate decision to plead no contest. We think it
reasonable to infer from the totality of the information before
the superior court that DeJesus might have elected not to plead
no contest had he been afforded the opportunity to discuss fully
with counsel the potential significance of pleading no contest to
an unclassified felony, rather than a class A felony.
Accordingly, we hold that the superior court erred in dismissing
DeJesus' post-conviction relief application.
CONCLUSION
The superior court's orders denying DeJesus' motion to
withdraw his no contest pleas and dismissing his application for
post-conviction relief are VACATED. This case is REMANDED for
further proceedings consistent with this opinion.11
_______________________________
*Sitting by assignment made pursuant to article IV,
section 16 of the Alaska Constitution.
1. DeJesus evidently had a small quantity of cocaine on
his person when he was taken into custody after the shooting.
2. No transcript of the afternoon hearing of March 20,
1989, has been included in the record; nor does it appear that
the tape recording of the conversation between Hudson and
DeJesus' trial counsel was actually incorporated into the trial
court's file or retained by the court. The circumstances
surrounding the afternoon hearing, which are not actively
disputed by the parties, were eventually described by DeJesus'
trial counsel in his March 28, 1989, Memorandum in Support of
Motion to Withdraw as Counsel and by Judge Steinkruger in her
July 10, 1989, written order denying DeJesus' motion to withdraw
his no contest pleas. Although Judge Steinkruger's written order
describes the tape recording as having been produced and played
at a hearing on March 24, 1989, the March 28 memorandum filed by
DeJesus' trial counsel and the transcript of the March 24 hearing
itself make it clear that the tape recording was produced and
played to the court, as originally directed, at a hearing on the
afternoon of March 20, 1989.
3. DeJesus' first language is Spanish, and he speaks
English with a heavy accent. At his change of plea hearing,
however, DeJesus' counsel assured the court that DeJesus was
sufficiently versed in English to proceed without an interpreter.
In rejecting DeJesus' subsequent motion to withdraw his no
contest pleas, Judge Steinkruger found that, despite his heavy
accent, DeJesus was capable of understanding the proceedings.
4. Even though the attorney who replaced DeJesus' original
counsel represented DeJesus at the sentencing hearing and in the
subsequent handling of DeJesus' post-conviction relief
application, a new attorney was appointed to handle DeJesus' case
on appeal. Appellate counsel filed a notice of appeal contending
that the superior court erred in denying the plea-withdrawal
motion, that DeJesus had received ineffective assistance of
counsel, and that his sentence was excessive. For reasons not
germane here, appellate counsel later failed to perfect the
appeal and took no steps to pursue an appeal of the superior
court's later order dismissing DeJesus' application for post-
conviction relief. The appeal was dismissed and eventually
reinstated upon proof to this court of good cause for
reinstatement.
5. Notably, this suggestion echoed a statement in DeJesus'
original, pro se application for post-conviction relief: DeJesus
asserted, in support of his contention that trial counsel had
misled him as to the likely sentence, that "[t]his can be proven
by a study of the tape of my court appearance where I plead no
contest on 3/20/89."
6. The applicable disciplinary rule that was in effect at
that time read:
If, after undertaking employment in
con-templated or pending litigation, a lawyer
learns or it is obvious that he or a lawyer
in his firm may be called as a witness other
than on behalf of his client, he may continue
the representation until it is apparent that
his testimony is or may be prejudicial to his
client.
Code of Professional Responsibility Rule S-102(b)(1988).
The Alaska Supreme Court has noted that the "roles of
advocate and witness are fundamentally incompatible." Estate of
McCoy v. Stonefield, 844 P.2d 1131, 1136 n.7 (Alaska 1993)(citing
J.D. Pflaumer, Inc. et al. v. United States Dep't of Justice, 465
F. Supp. 746, 748 (E.D. Pa. 1979)); accord Munn v. Bristol Bay
Hous. Auth., 777 P.2d 188, 196-97 (Alaska 1989). Other
jurisdictions are in agreement with this proposition. See, e.g.,
Commonwealth v. Shraiar, 489 N.E.2d 689, 693 (Mass. 1986)
(attorney's loyalty to his client prevents him from
"simultaneously serving as both defense counsel and prosecution
witness, where the attorney's testimony will prejudice the
defendant").
7. In his later written motion to withdraw, counsel would
openly declare that, in light of DeJesus' testimony, he was
incapable of zealous representation -- that he could not "in good
conscience continue to represent this defendant."
8. Despite the passage of time and the obvious
possibility of changed circumstances, on remand DeJesus' plea-
withdrawal motion must be restored to and considered in its
original procedural context -- that is, the superior court must
decide the case as a presentence plea-withdrawal motion; the
issue of potential prejudice to the state, if reached, must be
governed by the court's prior factual findings.
9. Since the conflict-of-interest theory pertains only to
the propriety of DeJesus' attorney's actions after entry of the
no contest pleas, if DeJesus prevailed on this theory of
ineffective assistance, he would not thereby be entitled to
withdraw his plea, but only to relitigate the plea-withdrawal
motion. This is the relief he has been granted by our decision
vacating the order denying that motion. In contrast, DeJesus'
other theories of ineffective assistance implicate his original
counsel's handling of the case at the change-of-plea stage. If
DeJesus prevailed on either of these claims, he would be entitled
as a matter of right to the reinstatement of his original not
guilty pleas. See Alaska R. Crim. P. 11(h)(1)(ii)(aa)(manifest
injustice warranting withdrawal of plea demonstrated whenever
defendant denied effective assistance of counsel in entering the
plea).
10. In two respects, the transcript of the change-of-plea
hearing indicates that counsel's subsequent deposition testimony
may have been in error. First, the transcript does not support
counsel's recollection at the deposition that he conferred with
DeJesus after being apprised of the correct sentencing range for
attempted first-degree murder. The transcript reveals that no
consultation occurred.
Second, counsel's statements in the transcripts
indicate, somewhat ambiguously, that at some point before the
hearing he "relayed" information to DeJesus that the maximum
sentence for attempted first-degree murder was ninety-nine years.
In this regard, however, counsel went on to say that, "before
talking to Mr. DeJesus again," counsel had convinced himself that
his original (mistaken) belief was correct. Assuming that the
correct information counsel at some point "relayed" to DeJesus
reached him, it seems clear that, by the time of the sentencing
hearing, DeJesus had again been advised of the incorrect
information.
11. Our disposition on these issues makes it unnecessary to
consider DeJesus' sentencing arguments.
